July 24, 2008

U.S. Supreme Court Review

The United States Supreme Court finished its recent term in June. ASU Law Professor Paul Bender gives an analysis of the court's major cases, and discusses what the outcome of the presidential race will mean for the court.

>>Ted Simons: Tonight on "Horizon": a review of the recently-ended united states supreme court session. We'll look back at the big decisions the court made including the overturning of the DC gun ban. Plus, find out what the presidential election could mean to the court and future rulings. A supreme court review, next, on horizon.

>>Announcer: Horizon is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

>>Ted Simons: Hello and welcome to "Horizon", I'm Ted Simons. The outcome of the upcoming Presidential Election will have a huge impact on the United States Supreme Court for decades to come. Here to tell us more about that, and to talk about the big cases the court decided this session, is Arizona State University Law Professor Paul Bender. Paul, good to have you back on the program.

>>Paul Bender: Nice to be here, Ted.

>>Ted Simons: There's so many things to get to this last term, and let's start to try to put things in context a little bit here with the makeup of the court.

>>Paul Bender: Well, and it relates to what you just said, and that is that this is really a critical elections in the history of the Court. And I think it's difficult for people who don't study this stuff to understand why. Let me try to explain it. Before the Second World War, The US Supreme Court was not, believe it or not, a major factor in individual rights. It was, if anything, a negative factor. The Dred Scott case, Plessy and Ferguson, advocating segregation, the Korematsu case, relocation of the Japanese. It was after the Second World War, starting in the mid-1950s, that the Court suddenly became a court that was expanding and forcing important individual rights, the so-called Warren Court. Random order education started. You had the reapportionment cases, you had Roe and Wade, the Miranda Case, cases revolutionizing criminal procedure. That went on until the mid 70s. When Nixon ran in the late 60s, one of his campaign policies was to change that, to reverse that, because he thought the Court was too activist. Since that time, seven of the nine people presently on the Court were appointed by Republicans, and only two by Democrats. That was Clinton's two appointments. But that change has not happened. It could be about to happen. It hasn't happened because some of the Republican appointees did not turn out to be as Conservative as the President who appointed them. But they would be just -- Justice [David] Souter is an example of that. [Sandra Day] O'Connor was another example, and [Anthony] Kennedy was another example. They're both Conservative, but not Conservative in a radical, reactionary way. And so the Court, when [George W.] Bush came into office, had three very staunch Conservatives, [Antonin] Scalia, [Clarance] Thomas, and [Wlliam] Rehnquist. Had four Moderate Liberals, [John Paul] Stevens, [David] Souter, and the two Clinton appointees, [Ruth Bader] Ginsburg and [Stephen] Breyer, and O'Connor and Kennedy, sort of in the middle. They agree with the Conservatives more than with the Liberals, but they were not ready to overrule, let's say Roe and Wade. Bush has had two appointments since then, but he didn't succeed in enlarging the Conservative group from three to five, because one of those appointments was a replacement for Chief Justice Rehnquist. And he appointed Chief Justice [John] Roberts, who as far as votes and opinions go, is identical. He was Rehnquist's law clerk. He votes in cases almost exactly the way Rehnquist would. But the replacement of O'Connor with [Samuel] Alito means that the first year Alito was on the court, he was the most Conservative justice. It means there are four staunch conservatives who probably would vote to overrule Roe and Wade, and to overrule some of the other stuff I just mentioned. So the next appointment, if it is from anyone other than those four, could put in place a solid and relatively young Conservative -- strongly Conservative majority. So, you can see where I'm going. And nobody really disagrees with this. Senator McCain has said that he would like to appoint people like Thomas and Scalia and Alito and Roberts. If he were able to do, and the next three people who are likely to leave would be, let's say, Justice Stevens, who is almost 90. Justice Ginsberg, who's the second oldest, and has had some health problems. Souter has suggested he'd like to leave the court. If any one of those three were to be replaced by somebody like Roberts and Alito, if two of them, or three of them would be replaced that way, you would have a staunchly very Conservative court for a long time, because all the present Conservatives are young, and those people probably would be too. On the other hand, Obama has said that Clinton's appointees are the kind of appointees he would make, Breyer and Ginsburg. So, if he replaces Stevens or Ginsberg or Souter, nothing would change, except that the Moderate to Liberal contingent on the Court would get younger.

>>Ted Simons: So the vacancies that are coming up would be folks who are on the left side of the bench, as opposed to the right side, most of whom are young and will be there for a while.

>>Paul Bender: You can't tell for sure. Anything can happen to people. It's life tenure. But yeah, the most likely of three people to leave are the people I just mentioned. It's hard to believe that Justice Stevens would stay on the court until the end of the next President's first term.

>>Ted Simons: The 88 years old? Yeah.

>>Paul Bender: He may. But it's --

>>Ted Simons: I want to get to the role of Justice Anthony Kennedy here, with that in mind. With what you just have mentioned, how is he -- is he still shape -- is this still essentially a "Kennedy Court"?

>>Paul Bender: Yes, it is. It is a "Kennedy Court". The term before this one, this last one, he was in the majority of every 5-to-4 case. And you can see why that is. You have four very Conservative people. You have four who would like to change things. You have -- to go in the Conservative direction. You have four people who are not radical Liberals. They're not pushing to make things more Liberal, to have more individual rights, but they would like to keep things the way they are, make maybe a little push toward more rights, and then there's Kennedy. And Kennedy sometimes agrees with one, sometimes with the other. He -- most up until now, he has agreed with the Conservatives about twice as many times as with the Liberals. But when he -- with he and O'Connor, they both played that role. Now he alone plays that role. Take a look at the last three big cases the Court decided this year. You mentioned I think one of them before, the DC Gun Control case, there's case involving the people in Guant�namo, and whether they have access to Federal Court, and there's the case raising the question whether you can give the Death Penalty for crimes other than murder or homicide. Kennedy was in the majority all 5-to-4 decisions. Kennedy was in the majority of the three of them. He wrote the opinion in two of them, which came out a Liberal way. And, although he voted on the Conservative side in the DC gun case, I have a feeling that he was -- without -- if there was somebody else like Alito to join those four, they would have written a much broader opinion than they actually wrote. The Gun Control opinion is a very narrow opinion. It basically says that there is a right to have a gun in your home to defend your home and yourself. And that is a sacred right. And then goes out of its way to mention all kinds of other Gun Control legislation that wouldn't take away that right. You can even regulate that right, just can't take it away. Which would be OK.

>>Ted Simons: Can you see a trend one way or another with Justice Kennedy? Or is it simply a case-by-case basis?

>>Paul Bender: Personally, I see a bit of a trend. I think over his years on the court -- and this is not unusual, it happened to Justice [Harry] Blackmun, it happened to Justice [John] Harlan, I think he's gotten what most people would think of as more Liberal. He's gotten more sensitive to individual rights. He's gotten more sensitive to the plight of the poor and the disadvantaged. The area in which he's done the most of that has been in Gay Rights. And interestingly enough, he has been the leader on the court in forging a jurisprudence about Gay Rights. He's written the two most important opinions in that area. And another thing that struck me, which I felt is really important, when he first came on the Court, and when I was in the Justice Department arguing cases before the Court regularly, a lot of them involving race, he was always a certain vote against any race-conscious Affirmative Action program. You knew he wasn't going to vote to uphold anything. A voting district to get a minority seat, or anything like that. when the Court struck down the Seattle program a couple years ago to use race to make sure that school didn't become segregated again, Kennedy voted to say it was unconstitutional. Roberts wrote a very broad opinion, saying any kind of race is bad. It's just like Brown and Board of Education. And Kennedy wrote an opinion scolding him, and saying it is not like Brown and Board of Education. I think this one is bad, but there's a big difference between discriminating on grounds of race to keep people out, and to let people in. And there are programs like these that I would agree with, he says.

>>Ted Simons: Without getting too far afield, and you've mentioned Republican-named justices who wind up not as Conservative as originally thought. Kennedy might be trending a little more Centrist or Liberal than originally thought. What happens to these guys when they get back there in DC?

>>Paul Bender: [Chuckles] Well, it may be the climate, or it may be the -- I don't think it is. I think it's what they see on the Court. Because they live very sheltered lives in DC, I think they see the cases. And they see, for example, this is an area where Kennedy maybe has not been affected, but you see case after case in which police violate the 4th Amendment. And you see that the remedies that are in place don't do a very good job of stopping that. And you see that in order to stop that, maybe you have to let some guilty people go free, keep out illegally-seized evidence. If you see that, it might make you more a favorite of the exclusionary rule to keep that out, because it's the remedy. When you see, as he did, a number of instances where Gay people are being discriminated against, like in the military -- the Court had a bunch of cases involving Military Officers who were being fired because they were Gays. And when you see that as a Justice, you begin to think about that. And sometimes, it begins to make you more sensitive to the rights of the individuals involved, and not so much concerned with the theory. And I think that is happening, to some extent, with Kennedy. He's no great fan of the Death Penalty the way he once was. I think he's open to a race-conscious Affirmative Action, and gender-conscious, and he believes in some very strong individual privacy rights like -- like Gays, and he joined with O'Connor to write an opinion saying, "I might not have voted for Roe and Wade in the first place, but I'm not going to vote to overrule it now. I think it's part of the national jurisprudence now." So yeah, I think he is moving somewhat to the Left.

>>Ted Simons: Let's say - again, getting things in context here, let's talk about the last term in general. Fewest cases since 1953-54. What's going on here? What was that all about?

>>Paul Bender: Nobody knows for sure. I have my guess. It's really interesting. They never sit in the afternoon anymore. Their argument schedule is light enough to begin with. They sit for seven months, they sit for two weeks in each of the months, they sit for three days in each of those weeks. And they sit for four hours a day. But in the last two years, they never sat in the afternoon. They have half a load of cases. And once you get used to that, you may not go back. Plus, it's up to them how many cases they take. I think the main thing that's going on there, and I think it's going to change, is that the main source of Supreme Court cases are Supreme Court cases. When the Court changes the law, that produces flood of cases. The Miranda Case produced a flood, 100 cases maybe the Court's had in Miranda. The Map Case, excluding evidence, did that. Roe and Wade has done that. Cases involving other aspects of the right of privacy. The Court, for the last 15 years, has been -- because it's been three and four and two, and the only people who want to change are the three, and the two rarely go along with that, has made very little new law. When the Court starts making new law, then you'll see cases. A very good example is the DC Gun Control Case. They haven't had a gun case since 1939. They're going to have a lot of gun cases now, because they have struck down one gun regulation. People who are advocates of Gun Rights want to strike down a lot of others. There's going to be a lot of litigation about that. And there'll be those cases. Every time they make a change like that, that produces cases. Another reason I think is that you've had a Conservative Supreme Court, and you've had a lower Federal Judiciary which mirrored them. Most of the lower Federal Judiciaries appointed by the same people who are appointed on the Supreme Court. So 7/9th of the lower Federal Judiciary are Conservative Republicans. Despite what the Court says, it says it takes cases not because they're right or wrong, but because they're important. It takes cases because they think they're right or wrong. If you think the lower decisions are right, you tend to take less cases.

>>Ted Simons: Interesting. Okay. Another aspect, I think we referred to this a little bit earlier, regarding the 5-4 decisions. Not as many as last term this go around. What's going on here? Are Liberals throwing in the towel? Are Conservatives maybe backing off a little bit on agenda and precedent? Why?

>>Paul Bender: Interesting. I'm not sure. But I think what may be happening is that, first of all, Roberts and Alito have sometimes joined. I think one of them joined with the Liberals in seven cases where the Court was divided, the other in six. That didn't happen before, but in none of those cases did their joining with the Liberals change the result. They were all cases 7-to-2 or 6-to-3 where one of them joined. Now, what happened there, it might be that the real vote was 5-4, and they were with the four. But they felt that by joining the majority, one, they could make the Court seem less fractured. And I think Chief Justice Roberts cares about that. And, two, they might be able to exert some influence on the opinion by joining it. And so, I think, there are several cases last year where Roberts did that and where Alito did that, and then, they may have had some influence on the opinion.

>>Ted Simons: Could there possibly be an election effect as well, considering this is an election year?

>>Paul Bender: What do you mean by an "election effect"?

>>Ted Simons: In the sense of having the Court not -- again, the Left not looking too Left, the Right not looking too Right, maybe a moderating influence?

>>Paul Bender: It's possible. I doubt it. The strict Conservatives on the Court are very much people of their principles, and I don't think that they're going to rely -- I can't see Justice Scalia, for example, saying, "OK, I normally vote this way, but gee, that might lose the Eepublicans some elections, so I'm not going to do that." I just don't think he thinks that way, and I don't think any of the four of them think that way, and I don't think any people on the other side think that way. These are people who I think they have life tenure, they're out of politics, and I think they want to stay out of politics in their own minds, although they are aware that what they do can have political implications.

>>Ted Simons: Major cases, Guant�namo Bay, that was a 5-to-4 ruling. Detainees can challenge detention. Surprised by that ruling?

>>Paul Bender: Not by that particular ruling, because they had basically decided that three years ago. And it was clear to me -- and I think it was clear to almost everybody -- what was going to happen. It was going to be 5-to-4. The last case was 5-to-4. Because Kennedy joined with the Moderate Liberals to say those people had access to the Federal Court. That's a revolutionary decision. That's never happened before. You now have the Court saying that it is going to exercise some control over the way the military and the President treat enemies.

>>Ted Simons: Well, and critics are saying does this turn GI Joe into Columbo out there, starting to gather evidence, and doing all these kinds of things. Extreme maybe, but I mean, there is a concern.

>>Paul Bender: The answer to that is no. But think of the extreme on the other side. And I think that's what Kennedy was afraid of. He almost comes out and says that. If they had decided there was no Judicial supervision of what happened in Guant�namo, that would mean that the military and the Executive Branch could treat those people however it liked, and the Courts couldn't do anything about it. Justice Kennedy is a great believer in the Balance of Powers, and he doesn't think -- and the other four who joined with him don't think that something that important should be kept completely out of the Court's realm, that the Court has a role to play in making sure that basic principles are applied to the American Government in everything. That doesn't mean that you need a Search Warrant to go into a house in the middle of a War. This is a very modest decision. It says that when people are away from the battlefield, are in custody in some place that's basically the United States -- although technically Cuba but Cubans have no control over what happens in Guant�namo, that those people have the same access to Federal Courts as if they were confined in the United States.

>>Ted Simons: We talked about the upcoming election, and how that might affect future rulings. Already, with that decision, Obama praised the ruling, and of course, Senator McCain attacked that ruling.

>>Paul Bender: I'm surprised at him for doing that.

>>Ted Simons: Really?

>>Paul Bender: Yeah. Because he is a great enemy of torture, and has been very articulate and strong on that.

>>Ted Simons: That's true, that's true.

>>Paul Bender: And he's got to understand, I think, that if the case had come out the other way, there would be no control, except the military's own control, and the CIA's own control over how these people are treated.

>>Ted Simons: Again, this was the ban on handguns, and again, "ban" would be the operative word here.

>>Paul Bender: Absolute ban on handguns in the District of Columbia. Maybe one or two other places, I think San Francisco may have a very similar ban. And it was held unconstitutional, not because there's a general right of people to own guns. The case, for example, says nothing about the right to own guns to hunt. Because Justice Scalia said he thinks it is a fundamental right that Framers understood that people are to have the right to defend themselves in their home, and that the DC Law took away from them the primary kind of defense that people today use, which would be a handgun, not a rifle. And you couldn't take that away entirely. You could regulate it, you could regulate guns in other contexts, parks, libraries, schools, things like that. But you can't take away that right, that right to have a gun to defend yourself.

>>Ted Simons: And again, Obama actually came out and said he could understand the ruling, and supported it as long as there were -- there was wiggle room, as we refer to it, regarding the ruling. And of course, Senator McCain was very pleased with the ruling.

>>Paul Bender: Right.

>>Ted Simons: So there you go as far as --

>>Paul Bender: There's a case which, if the next President were to appoint somebody like Alito or Scalia, it would still come out the same way, except that it might have been -- I take that back. It would come out the same way, but it might be a much broader opinion. You have four people on the Court who probably wanted to say there's a very broad Gun Right, and it's just like Free Speech. You need a really strong reason to overcome it. Justice Kennedy was the 5th vote. I don't think he thinks that, and I don't think he was willing to go along with it. So you have a very narrow opinion. If you replace Stevens with a staunch Conservative, they're in five votes, and they might come out with an opinion which says that they have a really strong right to guns.

>>Ted Simons: Kind of hard to figure out what Kennedy thought, because he didn't say much about it.

>>Paul Bender: No. not in that one, and you can't tell. It's under the table, as it were. But I think -- you need five votes to have an opinion of the Court. And so you needed his vote to get that opinion. And Scalia going out of his way to talk about all the kind of Gun Control that would be legal, I don't think that's something he would have done on his own without being prompted by somebody whose vote he needed.

>>Ted Simons: They got to 5 votes, 5-to-4, another decision here prohibiting Death Penalty for rape of a child. Another controversial ruling.

>>Paul Bender: Now, that one clearly would have come out the other way if there had been a Justice like Scalia, instead of a Justice like Stevens. That's one of those 5-to-4s that would come out the other way. And think about what that would mean. That would mean -- and I think this is why the Court didn't do this, why Kennedy didn't do this -- that would mean that it would be open season on where you could use the Death Penalty. If you don't draw the line of saying, as the Court did, that you can only use it where someone's killed, well then where can you use it? Rape of a minor? Okay. Other kinds of brutal crimes? Okay. States which favor the Death Penalty would try to test the limits of that by imposing the Death Penalty in a lot of areas. The Court would then have to develop a jurisprudence. How they do that, I don't know. Of when the Death Penalty is appropriate, and when it's not. I don't think they wanted to get into that. I think Kennedy wanted to get into that. This is a bright line to draw. But if it had come out the other way, we would have had in this Country a really big issue over the next several years about the use of the Death Penalty.

>>Ted Simons: And speaking of the Death Penalty, the 7-to-3 - 7-to-2, I should say, ruling this time, upholding Kentucky's use of Lethal Injections. This is one of those cases I think we talked about this earlier where bring a stronger case and maybe a different ruling?

>>Paul Bender: Well, the problem with that case is the allegation that people may be suffering tremendous pain in Lethal Injections, because they're paralyzed but they're conscious when this drug, which is very painful, is administered. The problem is: how do you get evidence of that? Because by definition, it's something that you can't. That's the problem. They're paralyzed, so you can't know what's going on. And those people don't come back to testify after they're executed. So, you've got to do it by speculation, and the Court said it was not going to speculate that there was a great deal of pain, or that the thing would be botched so there would be a great deal of pain. But, they said, if you can prove that it's being botched often, if you can prove that somebody is really suffering cruel punishment, then we might give you relief. So they did leave an opening there. They did the same thing in the case involving voter identification like we have -- like we have here. You need to provide a photo ID to vote. The Court upheld that, but recognized, again in an opinion which I think was narrower because of Kennedy's influence, recognized that there are -- there is a class of people who are really hurt by that. Homeless people, for example. It's much harder for them to get a vote or if you had no car or address or stuff like that. And they said if you could prove that there is a coherent group of people who is comprehensively discriminated against by this, then we might strike it down, as applied to those people. But here, you try to strike it down altogether. So they basically said: bring a narrower case with solid proof that somebody's really being hurt, and then you might win.

>>Ted Simons: We have less than a minute. This Court, this term, let's say this term, will be remembered for what?

>>Paul Bender: You mean of the cases?

>>Ted Simons: Yeah.

>>Paul Bender: I would think that Guant�namo is a big case. Because it opened a whole new area for the Court to be involved in. Otherwise, I don't think there's anything --

>>Ted Simons: 2nd Amendment?

>>Paul Bender: Well, no. Because I don't think they're going to expand that Gun Right to be a very broad right. If they ever did expand the Gun Right to be a broad right, if they got a fifth staunch Conservative on the Court, then it would be noted there. But the opinion is not a Brown and Board of Education. It's a very narrow opinion. And the Court tends to write narrow opinions. Not that it's hard to get five votes for broad opinions. So I think maybe Guant�namo, and maybe not. But in the future, if the membership changes we might see that kind of opinion.